IN THE COURT OF CRIMINAL APPEALS OF TENNESSEEAT NASHVILLE

September 17, 2013 Session

STATE OF TENNESSEE v. COY J. COTHAM, JR., also known as CORY J. COTHAM

Appeal from the Criminal Court for Davidson CountyNo. 2010-C-2636 Cheryl A. Blackburn, Judge

No. M2012-01150-CCA-R3-CD - Filed July 31, 2014

Following a jury trial, the defendant, Coy J. Cotham, Jr., also known as Cory J. Cotham, wasconvicted of first degree premeditated murder and especially aggravated robbery andsentenced to life without parole and twenty-five years, to be served consecutively. Onappeal, he argues that the trial court erred in: (1) denying his motion to suppress evidenceseized pursuant to search warrants; (2) denying his motion to suppress Wi-Fi evidence; (3)denying his motion to recuse; (4) concluding that the evidence was sufficient to sustain theconvictions; (5) allowing evidence of statements to the police by the victim’s husband; (6)allowing evidence of threats made by the defendant; (7) allowing proof as to the affidavit ofindigency; (8) instructing the jury regarding parole; and (9) setting the defendant’s sentencesand determining that they would be served consecutively. We have carefully reviewed therecord and conclude that the defendant’s assignments of error are without merit. Accordingly, the judgments are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the Court, in which JOSEPH M. TIPTON, P.J., joined. JEFFREY S. BIVINS, J., Not Participating.

Jeffrey A. DeVasher and William Allensworth (on appeal) and J. Michael Engle and MelissaHarrison (at trial), Assistant Public Defenders, for the appellant, Coy J. Cotham, Jr., alsoknown as Cory J. Cotham.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant AttorneyGeneral; Victor S. Johnson, III, District Attorney General; and Thomas Thurman, Bret T.Gunn, Katrin N. Miller, and Janice Norman, Assistant District Attorneys General, for theappellee, State of Tennessee.

OPINION

FACTS

The crimes for which the defendant was convicted stem from the August 29, 2010shooting death of the victim, Veronica Bozza, at her home in Hermitage, Tennessee. Thevictim’s estranged husband, Timothy Roy Bozza, who testified as a State’s witness duringthe defendant’s trial, also was indicted for first degree premeditated murder and triedseparately.

As we will set out, much of the evidence presented at the defendant’s trial resultedfrom a series of back-and-forth cell phone calls between the defendant and Mr. Bozza, whichprovided a partial basis for search warrant 406. The cell phone call records were obtainedby law enforcement officers pursuant to an exigent-circumstances request to the cell phoneprovider, rather than a search warrant. Much of the defendant’s argument on appeal is basedupon his view that these records were obtainable only by a search warrant, and because lawenforcement officers bypassed this procedure, the cell phone call records and derivativeevidence were unlawfully obtained. Accordingly, we first will review the pretrial evidentiaryhearing on the defendant’s motion to suppress these records.

Suppression Hearing on Search Warrant No. 406

Detective Andrew Vallee of the Metropolitan Nashville Police Department (“MNPD”)testified that, during the “late” evening on the day of the victim’s murder, he made anexigent-circumstances request for the telephone records of the victim, her husband, and thedefendant. His request to the phone company was for historical cell site data and historicalcall detail records. He obtained a search warrant the following day at the request of the leadinvestigator, Detective Crumby. In the search warrant affidavit, he included informationfrom a local record check showing that the defendant had two convictions for aggravatedassault. Based on a document he received from the defendant’s Oregon parole officer andinformation from an Internet website, Detective Vallee believed the defendant also had anaggravated rape conviction although the documents stated the defendant had raped afourteen-year-old girl. He later learned the conviction was for statutory rape. He was unableto conduct a NCIC check because he was not certified to do so.

On cross-examination, Detective Vallee said he requested the historical cell site data pursuant to Title 18 of the United States Code, section 2703. His exigent-circumstancesrequest was “based on the fact that Mr. Bozza and [the defendant] had talked numerous timesand the fact we were lied to about how many times they had actually talked. And [thedefendant] and Mr. Bozza both talked immediately prior to and immediately after themurder.” Detective Vallee explained that historical cell site data did not require triangulation

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in that it was “simply the tower that particular phone was hitting at the time.” He was ableto determine that the defendant’s and the victim’s cell phones “were hitting towers in the1

same vicinity.”

Detective Andrew Injaychock of the MNPD testified that he provided information toDetective Vallee for the search warrant and advised Vallee that he had observed scratcheson the defendant’s arms. He identified photographs depicting scratches on each of thedefendant’s forearms.

Garen Blanchard testified that he supervised the defendant’s parole after he wastransferred from Oregon. Blanchard said the defendant’s parole did not expire until March17, 2012; therefore, he was on parole in August 2010. He identified the defendant’sapplication for interstate transfer stating he agreed to abide by all the rules of both Oregonand Tennessee. Blanchard conducted an intake interview with the defendant on May 21,2010, at which time they discussed the Tennessee rules of parole to make sure the defendantunderstood the insignificant differences between the Tennessee and Oregon rules. He saidthe defendant next reported on June 4, July 12, and August 30, 2010. Upon questioning bythe trial court, Blanchard said he specifically recalled explaining to the defendant thedifferences between the Oregon and Tennessee rules regarding searches without warrants.

Subsequently, the trial court entered a written order on April 26, 2011, denying thedefendant’s motion to suppress “on the basis Defendant was a parolee at the time of thesearch and as part of his transfer to Tennessee he agreed to the warrantless search parolecondition. However, even if Defendant had not been a parolee or had not consented toTennessee parole conditions, the Court finds that the search warrant is valid and Defendant’smotion is . . . denied on the merits.”

On January 24, 2012, the defendant filed a “Re-newed Motion to Suppress SearchWarrant #406 Pursuant to United States v. Jones, __ U.S. __, No. 10-1259 (Jan. 23, 2012).” Finding that there was no “‘trespassory’ taking of the Defendant’s phone that would causethis case to fall within the parameters of the Jones ruling,” the court denied the defendant’srenewed motion by written order entered January 30, 2012.

Trial

State’s Proof

Lorenza Chiarmonte Pintar, the victim’s sister, testified that at the time of the victim’sdeath, the victim and her husband were in the process of getting a divorce and were fighting

Officers determined, after discovery of the victim’s body, that her cell phone was missing.1

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over custody of their son. Pintar had a lengthy telephone conversation with the victim theevening of August 28, 2010, and received a voicemail message from her the next day aroundnoon.

Father Joseph Patrick Breen, the pastor at St. Edward’s Catholic Church and School,testified that the victim was “a very strong, active member” of the church and that her sonwas a student at the school. He last saw the victim on Sunday, August 29, 2010, as she wasleaving mass around 11:35 or 11:40 a.m.

Garnett Jagels, a friend of the victim, testified that the victim left her a voicemailmessage on August 29, 2010, at 12:07 p.m. She said the call lasted about thirty seconds andsounded like the victim was in her car.

Brian Robinson, the victim’s boyfriend, testified that he talked to the victim on hercell phone, a white iPhone, at about 11:45 a.m. on August 29, 2010, and that they made plansto drive to Fall Creek Falls that day. He stopped to get gas and snacks at 12:15 p.m. beforegoing to the victim’s house. When he arrived at the victim’s house five to ten minutes later,he noticed that the garage door was open, which was unusual. The victim’s car was in thegarage, and her sunglasses were on the ground. Robinson saw her purse inside the car andlooked inside it for her cell phone. He entered the house through the back door and saw thevictim, who was bleeding, lying on the floor. Robinson called 9-1-1 at approximately 12:30p.m., and the police arrived shortly thereafter. Robinson identified a towel that looked “verysimilar” to the towel the victim kept in her computer cleaning kit.

Officer Jay Brandon Reed of the MNPD testified that he was the first officer torespond to the crime scene, arriving at about 12:30 p.m. He briefly spoke to Mr. Robinsonoutside and then went into the house where he discovered the deceased victim. Hequestioned neighbors, but they had not seen or heard anything.

Detective Craig Christie of the MNPD testified that he arrived at the crime scene at12:53 p.m. and found the victim lying on the living room floor with a pool of blood by herhead. He discovered a projectile on the floor next to the victim’s body, a hole in thehardwood floor, and a spent shell casing on the floor next to the wall near the back door.

Officer Johnny Lawrence of the MNPD Technical Investigations Division testifiedthat he created a Panoscan image of the crime scene, which was admitted as an exhibit. He2

described the appearance of the garage area and said it appeared some activity had occurred

The witness defined the Panoscan as “a camera that sits on a tripod that will take multiple pictures2

400-degrees, once that is done, we use software to put that together, so you’re actually like you’re standing

inside of this photograph and this photograph can spin around, it’s like you’re inside . . . the actual scene.”

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near the front of the victim’s vehicle. Inside the vehicle was a woman’s purse on thepassenger’s seat. Shoes were scattered at the doorway while the rest of the house was neatlyorganized. From his analysis of the scene, it appeared that the victim had hurriedly enteredthe house and gone into the living room where there was a back door leading out to the patio. The couch appeared to have been disturbed as if someone had lifted up the cushions lookingfor something. Four projectiles and one shell casing were recovered from the scene. Thevictim had two gunshot wounds to her head and gunpowder residue on her hand, indicatingthat her hand was “very close to a weapon when it was fired.” Officers found money on acounter in plain view a few feet from the victim’s body, $400 in an envelope, and a blankcheck made payable to the victim from Mr. Bozza with the notation “for school fees.” Itappeared that the money had not been “searched through. . . . [I]t’s like it [was] notimportant.”

Lynette Mace, a civilian employee of the MNPD Identification Unit, testified that sheprepared a diagram of the crime scene and processed the interior and exterior of the doorleading into the garage from the kitchen area for latent fingerprints. She also assisted OfficerLawrence with lifting prints from the victim’s vehicle. She collected into evidence fourprojectiles and one nine-millimeter shell casing. Two projectiles were recovered from holesin the floor, a third from inside a storage box beside the couch, and the fourth from the floornear the victim’s body. The shell casing was located against the shoe mold near the rearpatio door. She also collected hair from the victim’s right hand.

Officer George Nathaniel Ward, a crime scene investigator with the MNPD, testifiedthat he took photographs at the crime scene and collected latent fingerprints. Brenda Russellof the MNPD Identification Unit testified that she examined the latent fingerprints collectedfrom the victim’s house and that the only fingerprints she was able to identify belonged tothe victim.

Officer Roy Morris of the MNPD Technical Investigations Section testified that he collected DNA swabs from Mr. Bozza and Mr. Robinson, which were sent to the TennesseeBureau of Investigation (“TBI”) laboratory for testing.

Detective Johnny Ray Crumby, Jr. of the MNPD testified that he was one of the twolead detectives assigned to investigate the homicide of the victim. He interviewed Mr. Bozzaand determined that he was not present during the victim’s murder based upon receipts andstore surveillance videotapes showing that he was at Holt’s Cee Bee Market at 12:35 p.m.and at Lowe’s Home Improvement Center at 1:10 p.m. Detective Crumby reviewedtelephone records, which reflected numerous calls between Mr. Bozza and the defendant theday of the murder. He said the defendant “became a person of interest . . . because it lookedlike [the victim’s] cell phone was being used after the time of her death. And her cell phonewas using towers in the locations, exactly the same point, where [the defendant’s] cell towers

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were being used after the homicide.” Detective Crumby subsequently took a tape-recordedstatement from the defendant, which was played for the jury. Detective Crumby said that thedefendant’s statements were inconsistent and did not match the cell phone records theofficers had. The defendant was not arrested at that time, but his vehicle was seized.

After Detective Crumby executed a search warrant at the home of the defendant’smother, he began receiving threatening phone calls from the defendant who initially tried todisguise his voice. The defendant told Detective Crumby that he knew where the detective’sfamily lived, how old his son was, and what vehicles they drove. The defendant was laterarrested in Kentucky and transported back to Tennessee. As Detective Crumby wasescorting the defendant to the booking station, the defendant told him he knew also wherethe detective’s son attended school.

Felicia Evans, a crime scene investigator with the MNPD, testified that she processedthe defendant’s Cadillac Escalade on August 30, 2010. She identified photographs of theexterior and interior of the vehicle depicting, among other things, a black duffel bagcontaining a pair of white tennis shoes, two used blue latex gloves, and a collapsible coolercontaining a black Nike hat and a Condor brand black tactical sleeve, which could be wornaround the head as a scarf or face mask; a pawn ticket transaction from Toliver’s Pawn andLoan dated August 25, 2010; two brown towels found in the backseat; a cell phone chargerwith a phone connected to it; a pair of black gloves; and a blue hand towel.

Timothy Bozza testified that he had been charged with the first degree murder of thevictim and that he was currently incarcerated. He said he and the victim had been marriedabout seventeen years and had one son. At the time of the victim’s death, they had beenseparated about fourteen months and their divorce was close to being finalized. Heacknowledged that he and the victim “had an issue months before about the separation andchild custody” and that he lost a court hearing regarding custody arrangements for their son.

Mr. Bozza said that he had known the defendant for about thirteen years and that,about ten years ago, the defendant had lived with him and the victim for a few months. Thedefendant left Nashville for a period of time, and Mr. Bozza next saw him at the courthousethe day of Mr. Bozza’s custody hearing. They renewed their friendship, and the defendantbegan working for Mr. Bozza. Asked if he and the defendant had ever discussed killing thevictim, Mr. Bozza replied, “Well, yes, sir. I made a bad joke one day about a movie that –in the middle of a session we were both complaining about.” He said that he brought up theissue “in a moment of anger” and that it was then dropped. He denied offering the defendant$10,000 to kill the victim. However, the defendant offered him $10,000 “to take care ofLaura Yancey . . . the girl who was living with husband who had custody of his son.” Mr.Bozza said he told the defendant he “could never do anything like that.” Mr. Bozza deniedany knowledge of the defendant’s following the victim on numerous occasions prior to her

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death.

Regarding the day of the victim’s murder, Mr. Bozza acknowledged that he talked tothe defendant several times that day but said they only talked about “average bologna kindof stuff.” He said he met the defendant at a grocery store near St. Edward’s Church, wherehe was waiting to pick up his son from the victim. The defendant was driving a minivan thatbelonged to the woman with whom he lived, Jennie. After they parted ways, the defendantcalled Mr. Bozza and said that “it was done.” Mr. Bozza denied knowing what the defendantwas referencing because they had discussed “a number of things that day that could have fitat that point in time.” He later called the victim’s cell phone and received a return call fromthe defendant about an hour and a half later. The defendant told him to stop calling thevictim’s phone because he had it. He asked the defendant why he had the victim’s cellphone, and the defendant told him that “he had taken care of [Mr. Bozza’s] problem and that[the victim] wouldn’t be a problem for [him] anymore.” Mr. Bozza said that a few weeksafter the victim’s murder, the defendant came by his mother’s house and asked him for$35,000.

Mr. Bozza acknowledged that he had had numerous meetings with the police and thedistrict attorney’s office but denied telling them that he had any knowledge of the victim’smurder prior to its happening. A redacted portion of his November 16, 2010 videotapedstatement was then played for the jury. After the tape was played, the following colloquyoccurred:

Q. (By [the prosecutor]) Mr. Bozza, you admit that that’s inconsistentwith what you’ve testified to today, is it not?

A. Yes, sir. I was taking things in a different context. But, yes, sir.

Q. You were taking things in a different context today or then?

A. No, today, sir. That is clear what was said.

Q. That’s the truth?

A. Yes, sir, that’s what was said.

On cross-examination, Mr. Bozza said that he accepted responsibility for thestatement he made “that caused everything” but denied he was taking responsibility forplanning the murder of his wife. He admitted that he lied to Detective Crumby.

On redirect, Mr. Bozza admitted that his and the victim’s parenting plan required that

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they each carry life insurance in the amount of $350,000 payable to the other as trustee fortheir child. Asked about what he said in his statement as to whether he told the defendanthe would give him $10,000 to kill the victim, Mr. Bozza said, “[W]hen he offered, I said, thatsounds like a good plan right there, but I can’t necessarily do that [the killing] myself.” Asked to clarify if he meant he would give the defendant $10,000, Mr. Bozza responded,“Well, it could be construed as that, yes, sir.” He agreed that he “never backed off ofanything” and that his statement could “[a]bsolutely” be construed as an agreement to paythe defendant $10,000.

Barbara Bozza, Mr. Bozza’s mother, testified that she knew the defendant through herson and that he came by her house a week or two before the victim’s murder to see her son. Her son went outside and talked to the defendant for about two minutes.

Attorney Michael Rohling testified that he was retained to represent Mr. Bozza andthat he was present during every statement he gave to the police except for the initial one. He said that Mr. Bozza had not been promised anything in exchange for his testimony.

Jennifer Addington testified that when she separated from her husband in July 2010,she took his nine-millimeter handgun and placed it in a maroon lunchbox cooler that she keptunderneath her belongings in the back of her 2004 Honda Odyssey minivan. She then begandating the defendant and occasionally allowed him to drive her van. She discovered that thegun and lunchbox were missing “[s]ometime towards the end of July” and asked thedefendant about it, but he denied having it. She identified the lunchbox cooler, which wasadmitted as an exhibit.

Addington said that, on the day of the victim’s murder, she was supposed to meet thedefendant at her house at 7:30 a.m., but she was late getting home from her job in Huntsville,Alabama. When she arrived home between 9:00 and 9:30 a.m., the defendant was not there. She went to sleep and was awakened by the defendant sometime later. She went back tosleep and was again awakened by the defendant around 2:00 or 3:00 p.m. The defendant leftand, when he returned, he smelled like “burning leaves.” They then went to an early dinnerat TGI Friday’s restaurant. Addington said that the defendant had an Android cell phone, butshe noticed he had a “thinner” white phone that day. She told the police she had not seen aniPhone, but she had “no clue” if the white phone she saw was an iPhone.

Addington said that the defendant told her not to talk to the police because that was“how they had gotten him, that they had asked him to meet up to discuss [Mr. Bozza]. Andwhen they did, that’s when they had seized his phone in his car and held him all day and notto do it, that they were going to get me like that, too. And they were going to try to tell meall sorts of mean things – awful things about him and that it was just – for me not to do it.” However, based upon her attorney’s advice, she met with the police on August 31 but lied

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to them in saying that the defendant was with her the entire day of the victim’s murder. Shesubsequently met with Detective Crumby and gave the police another statement.

Addington said that before the defendant was arrested, he asked her to search hercomputer for news articles related to the victim’s murder and “to get any and everyinformation [she] could find on Detective Crumby and his partner.” She gave the defendantsome information, and the defendant asked her if she had deleted everything, which she had. The defendant also asked her to accompany him on a trip to Barbados and told her not to useher cell phone because it was tapped.

Jessica Logsdon testified that she was a family friend of Addington and also knew thedefendant. She said that she went to Addington’s residence between 12:00 and 5:00 p.m. onAugust 29, 2010, because she wanted to borrow Addington’s minivan, but the van was notthere. She went into Addington’s residence and attempted to wake up Addington but wasunsuccessful. The defendant was not there.

Jeff Walters, Jennifer Addington’s ex-husband, testified that he owned a Hi-Pointnine-millimeter handgun and around July 24, 2010, realized that it was missing. He filed apolice report, listing Addington as a suspect. He previously had fired the weapon duringtarget practice on his property in Ethridge, Tennessee, and assisted the police in recoveringshell casings from his property. Walters said that the nine-millimeter gun depicted in aphotograph admitted as an exhibit “look[ed] just like [his] gun.”

John Schmahl testified that he met the defendant when he moved into the apartmentacross from Schmahl’s and that they frequently socialized. He also knew Mr. Bozza and haddone some remodeling work for him. He described the defendant and Mr. Bozza’s friendshipas “[c]lose. . . . [T]hey both talked about each other highly.” As to the defendant’s financialcondition, Schmahl said that the defendant “played off to – as if he were doing very, verywell. He always had stacks of hundred dollar bills.” However, the defendant moved out ofthe apartment about a week before the sheriff’s department showed up with an evictionnotice. Schmahl said that the defendant had an Android phone and that he never saw thedefendant without it. He acknowledged that the defendant had a “pretty fancy” vehicle witha customized license plate that read “Big Man.”

Schmahl said that the defendant knew he owned a couple of guns and told him thathe wanted to buy a gun for “personal protection.” In July, the defendant showed him a Hi-Point nine millimeter gun in a maroon lunchbox and told him he “just bought it off ofsomeone” for $350. Schmahl said that the lunchbox admitted into evidence was “prettyidentical” to the one the gun was in when the defendant brought it to his residence.

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Schmahl said that the defendant called him on August 29, 2010, at approximately12:28 p.m. as he was driving northbound on Old Hickory Boulevard, a few blocks past theinterstate. The defendant told Schmahl that he had just driven past him.

Michael Chad Wilson testified that he had known the defendant for about ten yearsand occasionally socialized with him. He said the defendant had a very distinctive Androidphone that “probably never left his hand.” The defendant called him at approximately 2:46p.m. on August 29, 2010, and asked how to take the battery out of an iPhone. After Wilsonlearned of the victim’s death, he contacted the police and gave a statement. After thedefendant was arrested, Wilson received several telephone calls from him while he was injail and perceived the last call to be “threatening.”

Detective Andrew Injaychock of the MNPD testified that he was the co-lead detectivewith Detective Crumby. When he arrived at the crime scene, he noticed there appeared tohave been a struggle because the couch cushions were in disarray and a window blind hadbeen pulled off. After interviewing Brian Robinson, officers established the victim’s “timeframe of leaving the church to [her] residence” and determined that she had met with Mr.Bozza. Detective Injaychock interviewed Mr. Bozza who provided two receipts datedAugust 29, 2010, one from Holt’s Cee Bee in Ridgetop and one from Lowe’s in the Ridgetoparea, which were admitted as exhibits. The time stamped on the Holt’s receipt was 12:35p.m., and the time on the Lowe’s receipt was 1:19 p.m. Detective Injaychock later reviewedsurveillance videos from the two stores, which showed Mr. Bozza in the stores during thetime frames reflected on the receipts.

Detective Injaychock said that he subsequently went to Jeff Walters’ farm in Ethridgewhere two spent shell casings were recovered from the ground. He acknowledged that thegun and the victim’s iPhone were never found.

Attorney Phillip Robinson testified that he was retained to represent the victim in herdivorce case in March 2010. After a court hearing, the victim was awarded more time,approximately 203 days, with the parties’ child and a reduction in the amount of childsupport to be paid to Mr. Bozza. The time allotted to the victim “became a bone ofcontention and was very upsetting to Mr. Bozza.” The parenting plan contained a provisionrequiring both the victim and Mr. Bozza to carry $350,000 in life insurance and list the otherparent as the beneficiary as trustee for their minor child. Robinson said that the custody issueregarding the parenting time and the possibility of relocation had not been resolved at thetime of the victim’s murder.

John Russell, a financial advisor, testified that he did some financial planning for thevictim and Mr. Bozza. He said that, at the time of her death, the victim had a $550,000 lifeinsurance policy with Mr. Bozza listed as the beneficiary. Mr. Bozza approached him at the

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victim’s funeral and said “he needed to get together with [Russell] to discuss the insurance.”

David Kline testified that he managed the mapping division of the MetropolitanPlanning Department and had created over 100 maps related to the case. He identified aerialphotographs depicting, among other things, St. Edward’s Catholic Church, JenniferAddington’s residence, the victim’s residence, TGI Friday’s restaurant, the WasteManagement Nashville transfer station, and 5109 Old Hickory Boulevard. He also3

identified maps depicting a cell phone tower and the victim’s residence, a Verizon cell phonetower and TGI Friday’s restaurant, and an AT&T cell phone tower in Benton County. Heprovided distances between multiple locations and cell phone towers to Detective Vallee.

Special Agent Joel Wade of the TBI Technical Services Unit, accepted by the trialcourt as an expert in computer forensics and forensics of mobile devices, testified that heanalyzed a Motorola cell phone with an Android operating system submitted to him in thecase. He extracted from the phone the cache Wi-Fi file, which showed the actual latitude andlongitude of the router at the time the phone “saw” the router, and the cached out cell file,which showed the tower location. He explained that a cache file was a “log file of thelocations that that phone ha[d] seen in its past.”

TBI Special Agent Richard Littlehale, accepted by the trial court as an expert in thefield of communications records and criminal investigations, testified that he was theassistant special agent in charge of the Technical Services Unit. He said cell site locationinformation, including historical records, was generally available to law enforcementofficers. He explained that historical records were created by the phone company in thenormal course of business and showed which particular cell tower and, in certain cases, which side of the tower the handset had communicated with. Asked to explain thegeographic correlation between tower location and device location, Agent Littlehale said thathe “would expect to see a handset that is communicating within a particular tower to beeither within that first tier of towers or occasionally, because of interference or loadbalancing issues, going out to the outer second tier, . . . possibly in rare circumstances a thirdtier.” However, based upon his experience, handsets were “generally within those inner tiersof towers closer to the towers, particularly in urban areas.” Agent Littlehale acknowledgedthat he had not analyzed any of the records in the case.

On cross-examination, Agent Littlehale said that a handset did “not alwayscommunicate with the closest tower. The factors that influence what that handset, whatchoice that network will make, as far as which cell tower will communicate with a handset,depend on signal strength and also the load of the particular tower and any interference,

The witness stated “5109” Old Hickory Boulevard, but the corresponding exhibit shows the street3

number as “5901.”

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terrain, [or] obstacles that might interfere.” Based upon his experience, on most cellularnetworks in Nashville, the towers are between one-half a mile and two miles apart. Heexplained that a tier was “a set of towers that the handset could be using” and agreed that ifsomeone was trying to find a handset, the first tier was a number of towers, perhaps closetogether, and the second tier was a greater number of towers. On redirect, Agent Littlehaleagreed that cell phone records and tower locations did not pinpoint a handset. He said that,in criminal investigations, cell tower records were used to corroborate and/or refute evidenceand alibi statements.

Detective Andrew Vallee of the MNPD Criminal Investigations Division testified that he specialized in cellular telephone records and the analysis and mapping of those records. He analyzed call detail records for the victim, Brian Robinson, Jennifer Addington, and thedefendant. Using the PowerPoint presentation he created, Detective Vallee explained hisfindings regarding the day of the victim’s murder. Because the 9-1-1 phone call wasreceived at 12:30 p.m., he reviewed the victim’s cell phone records to determine what callswere made prior to that time. The victim called Brian Robinson at 11:51 a.m., which lastedeight minutes and started with tower 3099 near St. Edward’s Church and ended at tower 3108near Interstate 40 and Stewart’s Ferry Pike. She next made a thirty-three-second call at 12:01p.m. to her sister, and that call started at tower 3108 and ended at tower 3537 located atInterstate 40 and Old Hickory Boulevard. The last phone call prior to the victim’s death wasmade to Garnett Jagels at 12:07 p.m., with the victim’s phone again connecting to tower3537. Detective Vallee said that the most direct route from St. Edward’s Catholic Churchto the victim’s residence was about a fifteen- to twenty-minute drive. The victim’s callpattern showed that when she was at home, she connected with AT&T tower 3035, whichwas the closest tower. Mr. Bozza called the victim’s cell phone at 1:48 p.m., connecting toantenna 3037 which was located 1.8 miles from Addington’s residence. At 1:49 p.m., thevictim’s cell phone received a voicemail notification, which connected to AT&T antenna3037. The voicemail was accessed at 1:50 p.m. There was no activity on the victim’s phonefrom 7:40 p.m. that day until August 31 at 10:53 a.m. when her phone transmitted data andconnected to AT&T antenna 3150 near the Waste Management Nashville transfer stationlocated at 1428 Antioch Pike. At 1:44 p.m., her phone again transmitted data from AT&Tantenna 3077 near the Waste Management Landfill in Camden, Tennessee. Detective Valleesaid that the victim’s cell phone was likely thrown away, went to the Nashville transferstation on Antioch Pike, and then was transported by garbage truck to the landfill in Camden.

Detective Vallee said that they had information indicating that Mr. Bozza was atHolt’s Cee Bee in Ridgetop, Tennessee, at the time of the victim’s murder. After analyzingMr. Bozza’s phone records, Detective Vallee learned that Mr. Bozza called the defendantthirteen times on the day of the victim’s murder, seven times prior to her murder and sixtimes afterwards. He then requested the defendant’s phone records, which showed thatbetween 10:46 and 11:05 a.m. on the day of the victim’s murder, the defendant’s phone was

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connecting to Verizon antenna 531, near Jennifer Addington’s residence. At 11:14 a.m., thedefendant called Mr. Bozza, connecting to Verizon antenna 139 near Briley Parkway andLebanon Pike. From 11:29 to 11:43 a.m., there were five calls between the defendant andMr. Bozza, all connecting to Verizon antenna 61 near St. Edward’s Catholic Church. Thedefendant’s cell phone also connected to a Wi-Fi access point near the church at 11:54 a.m. The next activity on the defendant’s phone was at 12:20 p.m., when he made a ten-secondcall to Mr. Bozza that connected to antenna 117, followed by another call at 12:22 p.m. thatlasted 102 seconds and began with antenna 116 and ended with antenna 113. Antenna 113was less than a mile from the victim’s residence, antenna 117 was 3.06 miles, and antenna116 was 5.14 miles. The next call placed on the defendant’s phone was at 12:28 p.m. to JohnSchmahl that began with antenna 24 and ended with antenna 139. At 12:39 p.m., thevictim’s cell phone received a text message from antenna 3052, which was located near theintersection of Interstate 40 and Spence Lane. The next activity on the defendant’s phonewas from Verizon antenna 531 near Addington’s house and included a 12:51 p.m. call fromMr. Bozza, a 2:24 p.m. call to Addington, and a 2:28 p.m. call from Addington. At 2:45p.m., the defendant called Chad Wilson, first connecting to antenna 531 and ending withantenna 141 located at the intersection of Interstate 40 and Interstate 24. Between 3:15 p.m.and 3:23 p.m., the defendant’s cell phone was connected to an antenna in the Hickory HollowMall area near TGI Friday’s restaurant. The defendant’s phone also showed a Wi-Ficonnection access point near the restaurant. Jennifer Addington’s call activity showed thatshe connected to the antenna near TGI Friday’s at 3:19 p.m., which corroborated herstatement to the police.

Detective Vallee said that further analysis of the defendant’s call detail recordsshowed that a Wi-Fi access point near the victim’s house was logged on the defendant’sphone at 6:13 a.m. on August 26, 2010, three days before the victim’s murder. Thedefendant called Mr. Bozza that day at 6:32 a.m. and talked for seven and a half minutes.

On cross-examination, Detective Vallee agreed that the information he had was singlecell site information, which was less precise than GPS or trilateration. He further agreed thatthe exact location of a telephone handset could not be determined based on the location ofa cell tower.

Officer Mark Mittermeier of the MNPD testified that in September 2010 he wasassigned to the United States Marshals Fugitive Task Force and that his unit arrested thedefendant in Glasgow, Kentucky, on September 20, 2010, at Brenda Pittman’s residence.

Sergeant Pat Postiglione of the MNPD testified that he recovered Ms. Pittman’s workcomputer from her employer and turned it over to Detective Chad Gish, a forensic examiner,for analysis.

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Detective Gish testified that he analyzed the defendant’s Android cell phone andrecovered numerous photographs. One photograph dated August 2, 2010, was of a nine-millimeter pistol with a loaded clip lying next to it. Another photograph dated August 13,2010, was of a mattress with what appeared to be bullet holes. Detective Gish also recovereda text message Ms. Pittman sent to the defendant at 8:57 p.m. the day of the victim’s murderthat read, “I am so happy for you . . . it’s great when a plan comes together . . . .” Hisanalysis of Ms. Pittman’s computer showed she had sent emails to an address,bigmansixnine@gmail.com, associated with the defendant’s phone. One email dated August19, 2010, ten days before the victim’s murder, included attachments containing informationon Barbados and processing times for passport applications. Another email dated September17, 2010, included an attachment listing countries that do not have extradition treaties withthe United States.

Toya Randolph, an employee of the Criminal Court Clerk’s Office, identified a formthe defendant filled out indicating that he had no job or source of income and that he owedchild support.

TBI Special Agent James Russell Davis, II testified that he tested numerous items ofevidence for gunshot residue. He found gunshot primer residue on the blue towel and theCondor tactical sleeve recovered from the defendant’s vehicle. The residue particlescontained tin and zirconium, which was unique. He analyzed the shell casing recovered fromthe crime scene and found that it “also had the elements tin and zirconium.” Agent Davisexplained that this was the first time he had seen zirconium in gunshot residue and that theshell casing was an import, apparently manufactured in Russia.

Dr. John Davis, a forensic pathologist, testified that he performed the autopsy on thethirty-nine-year-old victim and determined that her cause of death was multiple gunshotwounds. The victim had a close contact gunshot wound, which entered through her left earand exited above her right eye. She had a second gunshot wound, which entered behind andabove her left ear and exited between her ear and forehead on the right side. Both of thesewounds were lethal. Additionally, the victim had a gunshot wound to her right shoulder andto her right arm, which broke her arm. Dr. Davis said that the victim had been shot “at leastfour times.” No projectiles were recovered from the victim’s body.

Dr. Laura Boos of the TBI Crime Laboratory Serology DNA Unit testified that sheperformed DNA testing on the blue latex gloves, blue hand towel, lunchbox cooler, andtactical sleeve recovered from the defendant’s vehicle. The items contained a mixture ofgenetic material from more than one person. She obtained a limited DNA profile, which wasconsistent with the defendant, from the latex gloves. She was able to exclude the victim, Mr.Bozza, and Brian Robinson as contributors to the mixture found on the gloves. She also wasable to exclude Mr. Bozza and Mr. Robinson as contributors to the genetic material on the

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blue towel but was unable to exclude the defendant and the victim as potential contributors. The towel was sent to another laboratory for further testing. From the limited profile sheobtained from the lunchbox cooler, the defendant could not be excluded as a contributor, butthe victim, Mr. Bozza, and Mr. Robinson were excluded. The major profile on the Condortactical sleeve “completely match[ed]” the defendant, and she was able to exclude the victim,Mr. Bozza, and Mr. Robinson as contributors. On cross-examination, Dr. Boosacknowledged that she did not find the defendant’s DNA on any of the profiles obtainedfrom the crime scene or underneath the victim’s fingernails.

Jennifer Smith, a DNA analyst with Orchid Cellmark Laboratories, testified that sheexamined the blue towel, using a different technique than most other laboratories, and foundthat the “major DNA profile present on the side of the towel without writing originated from[the defendant].” The victim and Mr. Robinson could not be excluded as minor contributors,and no conclusion was reached regarding Mr. Bozza.

TBI Agent Steve Scott, assigned to the Firearms Identification Section, testified that he examined a nine-millimeter cartridge case and four nine-millimeter bullets recovered fromthe crime scene. The bullets had a copper steel mix, which was “a little bit unusual” andconsistent with a Russian-made ammunition. He compared two cartridge cases shell casingsfound on the property in Ethridge, Tennessee, to the cartridge case recovered from the crimescene and determined they had been fired in the same firearm. Characteristics most commonto firearms manufactured by Hi-Point were present on all three cartridge cases. Agent Scottidentified the gun and magazine depicted in a photograph recovered from the defendant’s cellphone as a Hi-Point semiautomatic pistol. The shell casing recovered from the crime scenehad the same green coloration as the top cartridge case in the magazine.

Defense Proof

The defendant testified that he had known Mr. Bozza approximately sixteen years and,during the summer of 2010, was working with him as “kind of business partners.” He knewthat Mr. Bozza was in the process of getting a divorce and that Mr. Bozza was upset abouthis situation with the victim. The defendant said that it was not unusual for him and Mr.Bozza to call each other “all day long.” He identified photographs of his Cadillac Escaladeshowing, among other things, his customized license plate which read “Big Man.” He deniedkilling the victim, saying he spent the night before the victim’s murder with Brenda Pittmanin Kentucky. He said he arrived back in Nashville sometime after 10:00 a.m. the next day,August 29, 2010, went to see his son’s mother, Laura Yancey, and then went to JenniferAddington’s residence. He talked to Mr. Bozza and then met with him around 11:15 a.m.near St. Edward’s Church where Mr. Bozza was to pick up his son. They discussed theirweekend activities and potential job bids, and the defendant left around 11:50 a.m. to meetMs. Yancey at a parking lot near Addington’s residence. While he was repairing Ms.

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Yancey’s older model vehicle, she drove his Cadillac Escalade to get some food. After Ms.Yancey left, the defendant realized that his phone was on the charger in his Escalade. Ms.Yancey returned around 12:28 p.m., and the defendant then went to Addington’s house,arriving there at about 12:30 p.m. Around 3:00 p.m., he and Addington went to the TGIFriday’s restaurant in the Hickory Hollow Mall area. He said he last talked to Mr. Bozzaaround 4:00 p.m.

The defendant said that he used the blue latex gloves found in his vehicle to protecthis hands while cleaning his rims with “basically pure acid” that he kept in a green jug in theback of his vehicle. He explained that he used the black tactical sleeve as a face mask whendoing work-related painting or sanding. He said he used the blue towel to clean his vehicle.

Regarding the photograph of a mattress with holes in it found on his cell phone, thedefendant said that the mattress belonged to his mother and “was so worn out that the springshad poked holes in [it].” He denied that the holes were bullet holes and said that he and Mr.Bozza moved it out of his mother’s house onto the back patio. Asked about the emailscontaining information about Barbados and extradition treaties, the defendant said that Mr.Bozza had taken a trip there and that the State of Tennessee had frozen one of his bankaccounts as a result of his child support arrearage. The defendant said he wanted to knowif would he be extradited back “for something silly like child support” if he moved toBarbados. He denied any knowledge of life insurance policies on the victim’s life.

On cross-examination, the defendant acknowledged that his nickname was “BigMan.” He admitted that he had a prior conviction for criminal impersonation. Regarding thethirteen phone calls between him and Mr. Bozza on the day of the victim’s murder, thedefendant said they “only got in touch with each other about seven of those times.” He saidhe met Mr. Bozza at the location where Mr. Bozza was to pick up his son to tell him abouthis weekend activities because he could not “do it over the phone with Jennie Addingtonright next to [him].” He denied following the victim prior to her murder.

The defendant acknowledged that when he was arrested, he was on the phone withMs. Addington and told her to call Mr. Bozza and tell him what had happened. He furtheracknowledged that he passed five or six notes to Mr. Bozza in jail, telling him to “staystrong” and “[n]ot to get depressed and take twenty-five years.” He denied talking to Mr.Bozza about killing Ms. Yancey’s ex-husband or the victim. He said that Mr. Bozza’scomments about the victim “were like that of . . . a husband going through a divorce.” Hedenied calling Mr. Bozza at 12:22 p.m. on the day of the victim’s murder, saying that Ms.Yancey had his phone at that time because it was in his vehicle.

The defendant acknowledged that he was in the victim’s neighborhood at 6:15 a.m.three days before the victim’s murder but said he was there at the request of Mr. Bozza, who

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had called him that morning and asked him to drive by the victim’s residence to see if Mr.Robinson’s car was there. Asked if he was at St. Edward’s Church at the same time thevictim got out of church, the defendant said, “If she got out at 11:45, then she had to havepassed me.” He denied asking Ms. Pittman to obtain information on any of the policeofficers or prosecutors. He acknowledged going to Mr. Bozza’s mother’s house but said thathe stopped by there on his way back from Kentucky and that Mr. Bozza knew he wascoming.

The defendant acknowledged that there was a past due phone bill in his vehicle andsaid that the pawned television was given to him by a friend who owed him money and thathe “took the property and got what [he] could out of it.” Regarding the form he signed underoath indicating that he had no assets, no bank account, and had not paid taxes since 2007, thedefendant said he closed his bank account because it had been seized when he “got like . .. a child support letter.” He elaborated, “At that point in time I wasn’t about to put anymoremoney in the bank account if all of it was going straight – so I would save my money eitherby cash or just put it in another account.” Asked if he had been truthful when he completedthe form indicating he did not have any assets, the defendant responded, “I listed myEscalade, which is my personal asset. As far as if I’m in custody, I’m not generating anymoney. I’m sitting here, I’m not working, no money is coming in. So that’s about as truthfulas I could be. If I would have been allowed to continue working, I would have had plentyof money.” The defendant said that when he returned from the west coast, “I sold a lot ofthings out there. I wasn’t completely broke when I c[a]me back as you would have the Courtassume. I had plenty of money from the things I had sold. I was just living off that.” Hedenied being broke at the time of his arrest, saying, “At that time I didn’t have cash layingaround. . . . [M]y money was tied up in bills, and I made prior investments to some of thebusiness arrangements we talked about[.]”

As to the gun that was in Ms. Addington’s lunchbox, the defendant said that “probablyat least . . . seven to ten days before the homicide . . . [Mr. Bozza] gave [the defendant]money for the gun.” When asked to confirm that he sold the gun to Mr. Bozza, the defendantsaid, “No, actually it was [Ms. Addington].” Regarding threats made to Detective Crumby,the defendant said, “I’m not really one to threaten, but at the time I was upset. . . . I askedhim about his son. That’s not a lie. I did do that.” He denied telling Ms. Addington to eraseinformation from her computer regarding the detective’s family, saying:

When [Ms. Addington] mentioned that, she had checked on a storyabout [the victim]. As soon as I found out from [Mr. Bozza] about whathappened, the first thing that came to my mind was [Mr. Bozza] done it. When [Mr. Bozza] tells me that he wasn’t there at the time and he proved tome he was in Greenbrier, I started doing a search. Because [Mr. Bozza] sworeup and down, man, I’m telling you, I had nothing to do with it. I’m like, I just

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got the gun to you about ten days prior. Because him and [Ms. Addington]had had their little meeting or whatever. And me and [Ms. Addington] werechecking to see what type of firearm was used in the death of [the victim].

The defendant acknowledged that he called Chad Wilson but said they talked “forbarely thirty seconds . . . and didn’t say anything about an iPhone or anything like that.” Hedenied ever having the victim’s cell phone.

Penalty Phase

The parties stipulated that the defendant had three prior convictions for aggravatedassault, occurring in 2001 and 1996, and certified copies of those judgments were admittedinto evidence.

Maddalena Stucchi, the victim’s mother, testified about how the victim’s death hadimpacted her and the victim’s nine-year-old son. She said the victim left Italy to come to theUnited States to fulfill her dreams. The victim’s younger sister, Lorenza Pintar, testified thatshe and the victim were born in Milan, Italy, and that the victim and her son were the onlyfamily she had in the United States. She said the victim was her only sibling and had alwaysinspired her to follow her dreams.

Barbara Cotham, the defendant’s mother, testified about the defendant’s childhoodand educational history. She and the defendant’s father had been married for twenty-twoyears but divorced in 1993 when the defendant was seventeen or eighteen years old. Thedefendant continued to live with her “[o]ff and on” after the divorce. The defendant droppedout of high school but had earned his GED. Ms. Cotham said the defendant and Mr. Bozzahad moved a mattress and box springs for her.

The defendant’s paternal aunt, Jacqueline Francis, testified there was only a three-yearage difference between her and the defendant and that they “grew up together. . . . He’s morelike a little brother than a nephew.” She said the defendant “was disappointed and veryunhappy” when his parents divorced.

The jury found two statutory aggravating circumstances, that the defendant had beenpreviously convicted of one or more felonies, other than the present charge, whose statutoryelements involved the use of violence to the person and that the defendant committed themurder for remuneration or the promise of remuneration, see Tenn. Code Ann. § 39-13-204(i)(2), (4), and sentenced the defendant to life without the possibility of parole. At asubsequent sentencing hearing, the trial court sentenced the defendant as a Range I offenderto twenty-five years for the especially aggravated robbery conviction, to be servedconsecutively to the life sentence.

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ANALYSIS

We will review the issues presented by the defendant on appeal.

I. Motion to Suppress Evidence Seized Pursuant to Search Warrant 406

Both in the motion to suppress filed in the trial court as to search warrant 406 and onappeal, the defendant argues that “the search warrant was illegal, invalid, andunconstitutional; that the supporting affidavit was legally insufficient on its face; that thesearch warrant was based upon material misrepresentations in the affidavit thereto; and thatthe search warrant was overly broad and authorized an unconstitutionally general search.”4

Additionally, he argues that there was an insufficient nexus between the search warrantaffidavit and the evidence sought by the warrant and that the “cell phone trackinginformation” (CPTI) or the “cell site location information” (CSLI), relied upon by the searchwarrant as probable cause, was obtained in violation of his rights guaranteed by the UnitedStates and Tennessee Constitutions.

The State responds that, because the defendant was on parole at the time of the searchand seizure, his constitutional rights were not violated; that the obtaining of the defendant’s historic CSLI did not constitute a “search;” that the search warrant did not contain materiallyfalse statements; and that, because the first warrant was properly obtained, the subsequentwarrants were not fruits of the poisonous tree.

To properly assess the claims of the parties regarding these issues, it is necessary firstto set out the chronology of the matter, including the relevant language of the search warrant.

As we have set out, police officers learned from their interviews with the victim’shusband that he and the defendant had made telephone calls to each other the day of thevictim’s death. Based upon this information, officers requested and received copies of thecell phone records of the victim, her husband, and the defendant. From these records,officers learned that the victim’s husband and the defendant had telephoned each other anumber of times before and after her death and, as well, that her missing cellular phonereceived data, after her death, from cell phone towers which were being used at the sametime by the defendant’s cell phone. Utilizing this information, search warrant 406 was

Chapter 991 of the Tennessee Public Acts of 2014, which limits the circumstances under which law4

enforcement authorities may obtain cell phone location information, became effective on June 3, 2014; and,

thus, it is not relevant to our decision. Additionally, in Riley v. California, __ U.S. __, 2014 WL 2864483

(June 25, 2014), the United States Supreme Court held that, without first obtaining a search warrant, law

enforcement officers generally could not search digital information on a cell phone which had been seized

from an arrestee.

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obtained by investigators from a Davidson County General Sessions Court judge on August30, 2010. The sworn statement of facts in support of the warrant are as follows:

On 08/29/2010 Veronica Bozza was murdered at her residence at 5240New John Hager Road in Hermitage, TN. After interviewing the victim’sestranged husband, Timothy Bozza, he stated that he had only been in contactwith a friend, [the defendant], with a cellular telephone number of (615) xxx-xxxx. A check of the cellular telephone records showed that Timothy Boz[z]aand [the defendant] had been in contact 7 separate times before the murder. It also showed that the two contacted each other multiple times after themurder. A check of the victim’s and [the defendant’s] cellular telephonerecords showed that both cellular phones were in the same locations at thesame time starting at 11:29 a.m. until 14:45 when the victim’s cellular phonewas powered off. The victim was believed to have been murdered somewherebetween 12:07 p.m. and 12:22 p.m. Her cellular telephone was stolen and wastracked near [the defendant’s] cellular phone for the entire time span until itwas powered off.

[The defendant] is a convicted felon for aggravated rape and twoaggravated assaults. He is currently on parole under the Tennessee Board ofProbation and Parole. He also has an outstanding order of protection againsthim from a separate incident that indicates he has violent tendencies.

[The defendant] was interviewed by Detectives Andrew Injaychock andJohnny Crumby on 08/30/2010 and was observed to have scratches on him. The suspect placed his cellular telephone in the [2004 tan Cadillac Escalade]and locked it to avoid Detectives obtaining it. The cellular telephone containsvital information to this homicide investigation as described above. I requestthat this search warrant be issued to obtain photographs, physical samples,fingerprints, and DNA from [the defendant] to further this investigation asdescribed above.

Subsequently, the defendant filed a motion to suppress evidence obtained pursuant tothis search warrant. In his appellate brief, the defendant sets out the items which wereobtained or created as a result of the search warrant: a blue towel; photographs of thedefendant’s vehicle and items found in it; work gloves; a duffel bag; both used and unusedlatex gloves; a Cricket phone and cord; sunglasses; a cell phone bill; a pawn ticket; acollapsible cooler; DNA swabs; a hat and black tactical sleeve; a photograph on thedefendant’s cell phone of a nine-millimeter pistol; a Motorola Android cell phone andcharger; maps derived from cell phone tracking information; a Wi-Fi cache file and cellcache file for the defendant’s cell phone; a Tennessee Bureau of Investigation (TBI) report

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regarding Wi-Fi information taken from the defendant’s phone; a PowerPoint presentationbased upon cell phone tracking information; photographs of a mattress; text messages andemails between the defendant and Brenda Pittman; a TBI report that a tactical sleeve fromthe defendant’s vehicle contained gunshot residue; a TBI report that the defendant’s DNAwas found on both the tactical sleeve and latex gloves from his vehicle; and an OrchidCellmark laboratory report that the blue towel from the defendant’s vehicle contained hisDNA.

We next will review the pertinent testimony at the hearing on the defendant’s motionto suppress.

Detective Andrew Vallee of the MNPD testified that he made an exigent-circumstances request for historical cell phone data for the cell phones of the victim, thevictim’s husband, Timothy Bozza, and, later, for the defendant. He said his requests hadbeen made during the “late” evening of the day that the homicide occurred and hisexperience was that, had he utilized a subpoena or search warrant to obtain the records, theprocess could have taken “anywhere from six to twelve weeks just depending on what phonecompany you go with and how soon they get it back.” He sought the records at the requestof the lead investigator, Detective Crumby, who then was at the scene talking with thedefendant. Detective Vallee explained what he believed to be the “exigent circumstances”:

They were requested under exigent circumstances based on the fact thatMr. Bozza and [the defendant] had talked numerous times and the fact wewere lied to about how many times they had actually talked. And [thedefendant] and Mr. Bozza both talked immediately prior to and immediatelyafter the murder.

On appeal, the defendant argues that the State failed to establish at the hearing thatexigent circumstances existed, for officers were not in “hot pursuit” of the defendant andimmediate access to the records was not necessary to “thwart his escape,” protect others frominjury, or prevent the destruction of evidence. While the State disagrees with thesearguments, its primary response is that the defendant’s status as a parolee meant that hisFourth Amendment rights were not violated by officers’ obtaining the cell phone recordswithout a warrant.

As to the findings by the trial court upholding the seizure of the various items, thedefendant argues in his reply brief both that the record does not support the conclusion that,as a condition of his parole, he consented to the warrantless searches or that the officersconducting the searches were aware he had prior knowledge that he was subject to suchsearches. The State disagrees with these contentions. We will review the documents andtestimony relevant to these specific claims.

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The form styled “Offender’s Application For Interstate Compact Transfer” bearingthe signature of the defendant and dated January 8, 2010, provides, in pertinent part, “I willcomply with the terms and conditions of my supervision that have been placed on me, or thatwill be placed on me by Oregon (sending state) and Tennessee (receiving state).”Additionally, the form acknowledges that Tennessee provisions of supervision may differfrom those of Oregon:

I understand that my supervision in another state may be different thanthe supervision I would be subject to in this state. I agree to accept anydifferences that may exist because I believe that transferring my supervisionto Tennessee (receiving state) will improve my chances for making a goodadjustment in the community. I ask that the authorities to whom thisapplication is made recognize this fact and grant my request for transfer ofsupervision.

Exhibit J to this Oregon form, styled “General/Special Parole And Post-PrisonSupervision Conditions,” sets out, among several general conditions bearing the initials“CC,” the scope of the consent to search:

Consent to the search of person, vehicle or premises upon the requestof a representative of the supervising officer if the supervising officer hasreasonable grounds to believe that evidence of a violation will be found, andsubmit to fingerprinting or photographing, or both, when requested by theDepartment of Corrections or a county community corrections agency forsupervision purposes.

Additionally, the record on appeal contains a form styled “State of Tennessee Boardof Probation and Parole . . . Parole Certificate, which states in part that “said prisoner be, andis hereby paroled, subjective [sic] to the following conditions effective: [sic] . . . 8. I agreeto a search, without a warrant, of my person, vehicle, property, or place of residence by anyProbation/Parole officer or law enforcement officer, at any time.” This form does not bearany signatures.

At the evidentiary hearing on the defendant’s motion to suppress, Garen Blanchard testified he was the defendant’s parole officer and that the parole did not expire until March17, 2012. He conducted an intake interview with the defendant on May 21, 2010, at whichtime he “went over the Tennessee rules to make sure that [the defendant] understood thedifferences” between the Oregon and Tennessee parole rules. Blanchard “felt the rules wereworded almost the exact same” and “did not have [the defendant] sign the Tennessee rulesat that time but . . . did go over that parole certificate with him.” Using a Tennessee paroleform, Blanchard recited that condition number eight provided, as to the parolee, that “I agree

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to a search without a warrant of my person, vehicle, property, or place of residence by anyprobation or parole officer or law enforcement officer at any time.” Blanchard further saidthat, while the Oregon parole rules appeared to require that a parole officer be present at thetime of a warrantless search, “Tennessee is one of the states where [parole officers] don’thave to be present.”

Following the hearings, the trial court filed a lengthy written order denying the motionto suppress the search warrant. As to the defendant’s parole status at the time of the crimes,the court found that he was on parole and had been advised of the Tennessee paroleconditions:

Garen Blanchard testified that he has been with the Tennessee Boardof Probation and Parole since 2007, and he has been with its sex offender unitsince May 2010. Mr. Blanchard was assigned to serve as Defendant’s paroleofficer, shortly after Defendant was transferred from Oregon to Tennessee.

Mr. Blanchard testified that Defendant’s parole was not set to expireuntil March 17, 2012, so he was, in fact, on parole at the time the searchwarrant was executed in August 2010.

Mr. Blanchard conducted the intake interview with Defendant on May21, 2010. At that time, Defendant was actually assigned to Mr. Blanchard’ssupervisor, but since the supervisor was incapacitated at the time, Mr.Blanchard was asked to perform the interview.

Mr. Blanchard testified that during the interview he made sure to goover the Tennessee rules since they differed in wording from the Oregon rulesand Defendant’s application indicated he had to abide by both the Tennesseeand Oregon rules.

Mr. Blanchard said that Defendant did not sign a separate sheetregarding the Tennessee rules; however, he had initialed the rules for Oregon. All of the papers from Defendant’s Oregon parole officer are contained withinCollective Exhibit 8. Mr. Blanchard explained that these records came fromOregon in the standard way. According to the interstate rules, Tennesseeofficers are prohibited from contacting the parole officer who handledDefendant in Oregon; thus, the Tennessee Board of Probation and Parole hadto rely solely on the computer records provided by the Oregon Board.

Mr. Blanchard testified that Defendant did sign the Interstate Company[sic], which explicitly states that in applying for transfer, Defendant would be

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subject to the rules of supervision under Tennessee, and there is a portion ofthe document where Defendant has to agree[] to abide by both states’ rules.

Section 8 of the Tennessee Board of Probation and Parole Certifi[cate](contained in Ex. 8) authorizes a search, without warrant, of a parolee’sperson, vehicle, property, or place of residence by any law enforcement officerat any time. Mr. Blanchard testified that he specifically explained this sectionto Defendant since it differs slightly from the Oregon provisions. The Oregonprovision is broken into two separate rules and Oregon requires that aprobation/parole officer be present for any search whereas Tennessee does nothave that type of requirement. Additionally, the Oregon provision requiresreasonable grounds for a search to be conducted whereas the Tennesseeprovision does not require a grounds [sic] for the search.

In its order on the motion to suppress, the trial court concluded that the defendant wason parole at the time of the homicide and had been told that he was subject to the Tennesseeparole conditions, as testified to by his parole officer:

[I]t is clear that Defendant was on parole at the time of the search. Althoughthe record does not contain a Tennessee Parole Certificate signed byDefendant, Probation and Parole Officer Blanchard testified that he went overthe Tennessee rules with Defendant and explained how they differed fromsome of the Oregon rules. In addition, the Offender’s Application forInterstate Compact Transfer, which was signed by Defendant on May 21,2010, explicitly states that Defendant will comply with the terms andcondition[s] placed on him by both Oregon and Tennessee. The Court,therefore, finds that Defendant was not only on parole but had been advised hewould be subject to Tennessee conditions.

Further, the court concluded that “[t]he officers in this case were aware of Defendant’sstatus as reflected by the statements about Defendant’s prior criminal record and parole statusset forth in the Affidavit in Support of Search Warrant.” Accordingly, the court concludedthat a search warrant was not needed for a search of the defendant’s person or vehicle “inlight of his parole status and his acknowledgment he was subject to Tennessee paroleconditions, which authorize law enforcement to conduct searches.”

In sum, the court found that the “Defendant was not only on parole [at the time of thesearch and seizure] but had been advised he would be subject to Tennessee conditions.”Thus, the court concluded that, because the defendant was a parolee at the time the searchwarrant was obtained, “it was not necessary for the Metropolitan Police Department to obtaina warrant prior to searching Defendant and his vehicle in light of his parole status and his

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acknowledgment he was subject to Tennessee parole conditions, which authorize lawenforcement to conduct searches.” Additionally, the court determined that the “searchwarrant provide[d] sufficient probable cause to conduct the search regardless of whetherDefendant had been on parole at the time of the search.” As to this issue of the validity ofthe search warrant, the court made specific findings that, prior to seeking it, officers had notsought “any GPS information from the phone records; instead, [Detective Vallee] obtainedsignal information which could be used to track the vicinity of two phones (triangulation).”In finding the motion to suppress was without merit, the court relied heavily upon theunreported case of United States v. Skinner, No. 3:06-CR-100, 2007 WL 1556596 (E.D.Tenn. May 24, 2007), finding that cell phone users did not have a reasonable expectation ofprivacy to certain historical data:5

The Court finds the Skinner analysis persuasive and applicable to theissue before this Court. Specifically, as the Court alluded to during thehearing, cell phone users do not have an expectation of privacy as to cell signaldata. In order to make a phone call on a cellular . . . phone, signals must besent to cell towers through mechanisms controlled by the cell phone company. Since there is no expectation of privacy as to these signals/pings, a warrant isnot necessary to procure historical cell site information used to triangulate acaller’s location. Accordingly, the Court denies Defendant’s motion as to thisclaim. The Court shall now review Defendant’s additional challenges to thesearch warrant affidavit.

Further, the court noted:

[T]he search warrant authorize[d] the search of Defendant’s person forphotographs, physical samples, fingerprints, and DNA samples as well as anycell phone in Defendant’s possession, a specific cellular phone (the victim’sphone identified by phone number), and a vehicle Defendant drove to thepolice station that is identified by make, model, and VIN number. (Affidavitin Support of Search Warrant, Collective Ex. 2). The affidavit in support ofthe search warrant notes that Defendant’s person, cellular phones, and vehicleare currently under the control of the Metro Nashville Police Department.

The court explained why, generally, the search warrant was valid:

Specifically, the nexus for the search of Defendant’s person for the purpose oftaking photographs and physical samples (including DNA and fingerprints) isself-evident. As to the phone, the affidavit sets forth detailed information from

Subsequently, this case has been designated as “not for citation.”5

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phone records which establishes the nexus for searching Defendant’s phoneand the victim’s phone should it be found either on Defendant’s person orinside the vehicle. As to the vehicle, the affidavit explicitly states thatDefendant’s phone is known to be inside his vehicle; thus, a nexus isestablished with the automobile.

We now will review the specific issues as to the search and seizure.

A. Effect of Defendant’s Status as a Parolee

First, we will determine the effect of the defendant’s status as a parolee on his searchand seizure claims. While not denying he was on parole at the time, the defendant argues thatthe trial court erred in finding that he had “agreed to the standard search condition used byTennessee’s Board of Probation and Parole.” The State responds that the record supportsthe finding of the trial court that the defendant had waived his right to object to the searchand seizure.

As we have set out, Garen Blanchard, a Tennessee probation and parole officer,testified that he met with the defendant on May 21, 2010, to discuss the Tennessee rules ofparole with him “because they differ[ed] from Oregon in some of the wording.” He said hehad gone over the rules to make sure the defendant knew the differences between theTennessee and Oregon rules and did not recall the defendant’s asking any questions. He didnot ask the defendant to sign the Tennessee rules because he “felt the rules were wordedalmost the exact same [as Oregon].” Previously, the defendant had signed a documentagreeing to abide by the Tennessee rules. Blanchard testified he remembered telling thedefendant that, in Tennessee, he was subject to search by “anybody who is duly sworn forlaw enforcement purposes or any probation or parole officer.”

As to the legal authorities relevant to this issue, the State notes that, in Samson v.California, 547 U.S. 843 (2006), the Supreme Court explained why parolees had surrenderedtheir right against what otherwise might be unlawful searches and seizures:

This Court has repeatedly acknowledged that a State has an “‘overwhelminginterest’” in supervising parolees because “parolees . . . are more likely tocommit future criminal offenses.” Pennsylvania Bd. of Probation and Parole,524 U.S., at 365, 118 S. Ct. 2014 (explaining that the interest in combatingrecidivism “is the very premise behind the system of close parolesupervision”). Similarly, this Court has repeatedly acknowledged that aState’s interests in reducing recidivism and thereby promoting reintegrationand positive citizenship among probationers and parolees warrant privacyintrusions that would not otherwise be tolerated under the Fourth Amendment.

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See Griffin [v. Wisconsin], 483 U.S. [868,] 879 [(1987)]; [United States v.]Knights, [534 U.S. 112,] 121 [(2001)].

Id. at 853.

In State v. Turner, 297 S.W.3d 155 (Tenn. 2009), our supreme court adopted thereasoning of Samson:

A parole condition requiring that the parolee submit to warrantless searchesis reasonable in light of the parolee’s significantly diminished privacyinterests; the goals sought to be attained by early release; and society’slegitimate interest in protecting itself against recidivism. We therefore adoptthe reasoning of Samson and hold that the Tennessee Constitution permits aparolee to be searched without any reasonable or individualized suspicionwhere the parolee has agreed to warrantless searches by law enforcementofficers.

Id. at 166 (footnote omitted). The court concluded that “[a] suspicionless search of a paroleesubject to a warrantless search condition, and which is conducted out of valid lawenforcement concerns, is not unreasonable.” Id. at 167.

As we have set out, following an evidentiary hearing, the trial court concluded thatthe defendant was on parole at the time of the search and seizure of his records; that he hadbeen told he was subject to the Tennessee parole conditions, which provided for a searchwithout a warrant; that officers were aware of his prior criminal record and parole status; andthat, accordingly, a search warrant was not needed for the search and seizure of thedefendant’s telephone records, his person, and his vehicle. We conclude that the record, aswe have set out, supports this determination by the trial court.

The defendant presents on appeal certain additional factual arguments as to why hehad retained his rights against an unlawful search and seizure. He asserts that “[m]anymobile phone users are unaware that law enforcement agents have the ability to track theircellular information” and “view[] their location information as private, and expect[] it toremain private.” Additionally, he argues that “society views his expectation of privacy inhis cellular data and records as reasonable and justifiable under the circumstances” for it can“reveal details about the inside of an individual’s residence,” satisfying the objective prongof Katz.

He argues that, as a citizen, he had a reasonable expectation of privacy in the data andrecords that constituted cell site location information. The State responds to this assertionby saying that the defendant’s rights against an unlawful search and seizure were waived

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because he was a parolee and subject to the provisions of his parole agreement. As we haveset out, we agree with the State.

As for search warrant 406 itself, on appeal the defendant argues that it was defectivebecause its affidavit contained material false allegations, these being that the affidavit“overstate[d] the technological capabilities of cell phone site information in a manner thatrenders a false claim”; that, contrary to the affidavit, the defendant’s prior sexual offense hadbeen a conviction for statutory rape, and not aggravated rape; and that even if a photographof the defendant showed that he “had scratches on him,” they were not fresh.

Following a pretrial hearing on the defendant’s motion to suppress, the trial court, inits written order, found that these claims, even if they were true, would not entitle thedefendant to a hearing, as contemplated by State v. Little, 560 S.W.2d 403 (Tenn. 1978).

[T]here are two circumstances that authorize the impeachment of an affidavitsufficient on its face, (1) a false statement made with intent to deceive theCourt, whether material or immaterial to the issue of probable cause, and (2)a false statement, essential to the establishment of probable cause, recklesslymade. Recklessness may be established by showing that a statement was falsewhen made and that affiant did not have reasonable grounds for believing it,at that time.

Id. at 407.

“In order to be ‘essential to the establishment of probable cause,’ the false statementmust be the only basis for probable cause or if not, the other bases, standing alone, must notbe sufficient to establish probable cause.” State v. Norris, 47 S.W.3d 457, 469 n.4 (Tenn.Crim. App. 2000).

As to the inaccuracy in the affidavit as to the defendant’s prior conviction for a sexualoffense, the court concluded that it had not been recklessly made:

When preparing the Affidavit, the officers relied on information they receivedfrom Defendant’s Tennessee parole officer as well as an Oregon website, andit was not possible to verify the information from these two sources prior torequesting the search warrant; Detective Vallee testified to this issue at theevidentiary hearing. The State contends the statement was made in good faithwith no intention to mislead; however, should the Court determine it wasrecklessly made, the statement was not essential to probable cause and notrequire suppression of the evidence. This Court agrees.

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Likewise, the apparent factual dispute regarding whether the defendant had scratcheson his body did not entitle him to an evidentiary hearing:

The defense’s second objection to the Affidavit is the officer’s assertionDefendant had scratches on his body. This issue also was raised during theevidentiary hearing. Detective Injaychock maintained he observed scratcheson Defendant’s body and marked the scratches on the photographs taken thenight of the interview, which were admitted as Collective Ex. 6. The State anddefense dispute whether the scratches were fresh, healing, or old wounds. TheCourt finds that this dispute does not provide a basis for a Franks/Littlehearing.

The record supports these determinations by the trial court, that the defendant was notentitled to a Little hearing and that, even absent the assailed statements, search warrant 406provided sufficient probable cause its issuance and the subsequent search and seizure.

As we have set out, the trial court concluded, and we concur, that a search warrantwas not needed because of the defendant’s status as a parolee at the time. Accordingly, hisarguments as to deficiencies in the several search warrants are academic, for he had waivedhis right to make this claim.

B. Suppression of Search Warrants 508, 509, 512, and 513

Additionally, the defendant argues that evidence seized through subsequent warrants508, 509, 512, and 513 should have been suppressed because they were obtained as the resultof search warrant 406, which he argues was, itself, defective. The State responds that,because search warrant 406 was lawfully obtained, search warrants 508, 509, 512, and 513were, likewise, lawful. Previously, we have determined that, as a parolee at the time of theissuance of these warrants, the defendant had waived his Fourth Amendment rights. Thiswaiver extended to search warrant 406, as well as to 508, 509, 512, and 513. Accordingly,this assignment is without merit.

II. Error in Denying Motion to Suppress Wi-Fi Evidence

On appeal, the defendant argues that the holding in United States v. Jones, __ U.S. __,132 S. Ct. 945 (2012), which reviewed whether a search warrant was required for placementof a global positioning device on a vehicle, supports his claims regarding the Wi-Fi evidencein this matter. We disagree that this case can be extended to support seizure of a defendant’scell phone records from a third party. Further claims he might have in this regard are waivedbecause of his parolee status. Accordingly, this claim is without merit.

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III. Error in Denying Defendant’s Motion to Recuse Trial Judge

The defendant’s specific complaint is that the trial judge should have recused herselffrom the trial of this matter because she had earlier issued several search warrants in thematter, based upon the affidavits of Detective Andrew Vallee of the MNPD. Further, thetrial court entered an order that the issuance of the warrants not be disclosed to anyone“unless such person has a bona fide need to know to comply with said search warrant.” TheState responds that the defendant’s recusal motion was transferred to another trial judge, whodenied the motion.

Recently, in State v. William Lance Walker, No. M2011-02588-CCA-R3-CD, 2013WL 5436704 (Tenn. Crim. App. Sept. 27, 2013), perm. app. denied (Tenn. Jan. 16, 2014),this court considered whether a trial court’s issuing a search warrant required subsequentrecusal from later-related issues:

In denying the motion, the court relied on State v. Hawkins, 586 S.W.2d 465,465 (Tenn. 1979), which states that “[i]t has long been provided . . . that themagistrate who issues a search warrant may hear and determine any contestsconcerning its validity or the grounds upon which it was issued.”

A trial judge should grant a motion to recuse whenever his or herimpartiality can reasonably be questioned. Alley v. State, 882 S.W.2d 810,820 (Tenn. Crim. App. 1994). Recusal is “warranted when a person ofordinary prudence in the judge’s position, knowing all of the facts known tothe judge would find a reasonable basis for questioning the judge’simpartiality.” Id. The standard of review on appeal is whether the trial courtabused its discretion by denying the motion. Bd. of Prof’l Responsibility v.Slavin, 145 S.W.3d 538, 546 (Tenn. 2004); State v. Cash, 867 S.W.2d 741,749 (Tenn. Crim. App. 1993).

At the time the trial court considered the motion to recuse, the Code ofJudicial Conduct stated, in pertinent part, that disqualification is required when“the judge’s impartiality might be reasonably questioned, including but notlimited to instances where the judge has a personal bias or prejudiceconcerning a party or a party’s lawyer, or personal knowledge of disputedevidentiary facts concerning the proceeding[.]” Tenn. S. Ct. R. 10, Canon3.E.(1)(a) (2010). We note that Canon 3.E.(1)(a) has since been amended torevise the section numbers, but the language remains the same as when thetrial court considered the motion to recuse. See Tenn. S. Ct. R. 10, Canon2.11(A)(1) (2013). A trial judge “is not disqualified from hearing a casebecause he or she has knowledge of the facts of the case.” State v. Thornton,

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10 S.W.3d 229, 237 (Tenn. Crim. App. 1999) (citing State ex rel Phillips v.Henderson, 220 Tenn. 701, 423 S.W.2d 489, 492 (Tenn. 1968)). Likewise, ajudge “who initially issues a search warrant is not thereafter so interested inthe cause as to be disqualified[.]” Hawkins, 586 S.W.2d 465.

Id. at *13.

Applying the holding in William Lance Walker, we conclude that this issue is withoutmerit.

IV. Trial Evidence Insufficient to Sustain Convictions for First Degree Premeditated Murder and Especially Aggravated Robbery

The defendant argues that the evidence presented at trial was insufficient to supporthis convictions for first degree premeditated murder and especially aggravated robbery. TheState disagrees.

In considering this issue, we apply the rule that when sufficiency of the convictingevidence is challenged, the relevant question of the reviewing court is “whether, afterviewing the evidence in the light most favorable to the prosecution, any rational trier of factcould have found the essential elements of the crime beyond a reasonable doubt.” Jacksonv. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt incriminal actions whether by the trial court or jury shall be set aside if the evidence isinsufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,604 (Tenn. Crim. App. 1992). The same standard applies whether the finding of guilt ispredicated upon direct evidence, circumstantial evidence, or a combination of direct andcircumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

A criminal offense may be established entirely by circumstantial evidence. State v.Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight to begiven the circumstantial evidence and the extent to which the circumstances are consistentwith the guilt of the defendant and inconsistent with his innocence. State v. James, 315S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty to exclude everyother reasonable hypothesis except that of the defendant’s guilt in order to obtain aconviction based solely on circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370,380-81 (Tenn. 2011) (adopting the federal standard of review for cases in which the evidenceis entirely circumstantial).

All questions involving the credibility of witnesses, the weight and value to be giventhe evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

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S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by thetrial judge, accredits the testimony of the witnesses for the State and resolves all conflicts infavor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Oursupreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge andthe jury see the witnesses face to face, hear their testimony and observe theirdemeanor on the stand. Thus the trial judge and jury are the primaryinstrumentality of justice to determine the weight and credibility to be givento the testimony of witnesses. In the trial forum alone is there humanatmosphere and the totality of the evidence cannot be reproduced with awritten record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption ofinnocence with which a defendant is initially cloaked and replaces it with one of guilt, so thaton appeal a convicted defendant has the burden of demonstrating that the evidence isinsufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

The State’s proof established the business and personal relationship between Mr.Bozza and the defendant, as well as Mr. Bozza’s being upset because of an earlier childcustody hearing. He testified that custody “went from a 50/50 split to a 5/2 split instead.”Mr. Bozza said that, once, he and the defendant talked about a “crisscross,” as in the movieThrow Momma from the Train, and that Mr. Bozza had brought it up “in a moment ofanger.” Later that day, the defendant came to Mr. Bozza and offered him “$10,000 to takecare of” the woman who had custody of the defendant’s son. Mr. Bozza said that, after thedeath of the victim, the defendant told him he had followed the victim and “even run acrossher path directly one time.” The day the victim was killed, he and the defendant talked onthe telephone “a number of times.” He said that, on that day, they met at a grocery store nearSt. Edward’s Church, where the victim was dropping off their child. Later, the defendantcalled Mr. Bozza and said that “it was done,” Bozza responding that “we have to talk later.” Mr. Bozza said that, at the time, he “wasn’t quite sure” what the defendant was talking about, but “in hindsight, [he] believe[s] we all understand what he was talking about.” Afterwards,Mr. Bozza called the victim’s cell phone and then later received a call from the defendant,telling Mr. Bozza “to quit calling her phone, that he had it, there was no need for [Mr. Bozza]to call it anymore.” The defendant also told Mr. Bozza that “he had taken care of [Mr.Bozza’s] problem and that [the victim] wouldn’t be a problem for [Mr. Bozza] anymore.” A few weeks later, the defendant asked Bozza for $35,000.

The defendant’s girlfriend, Jennifer Addington, testified that she had taken a nine-millimeter Hi-Point pistol from her estranged husband and kept it in the back of her van.

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“Sometime towards the end of July [2010], . . . [she] had gotten scared,” thinking she mightbe arrested for taking the pistol, so she looked for it and found it was missing. She said thaton August 30, 2010, the defendant told her of the death of the victim and asked that sheutilize a computer to “see if there was [sic] any news articles . . . [h]e was concerned,” and“to get any and every information [she] could find on Detective Crumby and his partner.”

Addington’s former husband, Jeff Walters, testified that he suspected she wasresponsible for taking the pistol. Detective Andrew Injaychock testified that, acting uponinformation from Walters that he had fired the pistol at a farm, and accompanied by him, herecovered two spent shell casings at that location. TBI Special Agent Steve Scott testifiedthat the two spent cartridges recovered at the farm “had been fired in the same firearm thatfired the cartridge case that was found at the crime scene” and that the markings on all threecartridges were “most common to firearms manufactured by a company called Hi-Point.”

Detective Andrew Vallee testified that telephone records showed that, between 11:29and 11:43 a.m., there were five calls between the defendant and Mr. Bozza, all of themconnecting with an antenna “near” St. Edward’s Church. Chad Wilson testified that he wasan acquaintance of the defendant, and that on August 29, 2010, he received a telephone callfrom the defendant, asking “how to take the battery out of an iPhone.” Wilson instructed himhow to do so. After Wilson learned of the victim’s death, he telephoned law enforcementofficers and made a statement about the conversation. After the defendant had been arrestedand was in jail, he telephoned Wilson, who felt that the call was threatening.

As we will explain, from all of this evidence, we conclude that a reasonable jury couldhave determined that Mr. Bozza was angry with the victim because of the results of a childcustody hearing and discussed with the defendant his killing the victim and Mr. Bozza’sdoing the same to the woman who had custody of his child. The defendant stole a Hi-Pointpistol from the vehicle of his girlfriend, Jennifer Addington, and used it to kill the victim. Prior to the killing, he had learned the victim’s normal routine and, the morning of thecrimes, had been near her church. He talked by telephone to Mr. Bozza before and after thecrimes and, after shooting the victim, took her cell phone, which he kept with him for aperiod. Later that day, he called Mr. Bozza and said it was “done.” When Mr. Bozza calledhis wife’s cell phone, the defendant answered and said to “quit” calling the phone, and therewas “no need . . . to call it anymore.” A few weeks later, the defendant asked Mr. Bozza topay him $35,000. Additionally, the defendant obtained information about the investigatingofficer and another witness and threatened both of them. Accordingly, we conclude that theevidence is sufficient to support both of the defendant’s convictions.

V. Error in Admitting Timothy Bozza’s Interview With the Police

On appeal, the defendant argues that Mr. Bozza’s prior statement does not qualify as

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a prior inconsistent statement; that the court should have admitted only those portions of thestatement inconsistent with his trial testimony; and that the court should not have instructedthe jury that it was to consider all of Mr. Bozza’s statements as substantive evidence and notjust those which were inconsistent with his trial testimony. The State responds that the courtdealt properly with Mr. Bozza’s prior tape-recorded statement because of his denying, duringthe State’s direct examination, important and relevant recorded assertions.

We will set out the trial events which are the basis for this assignment.

Mr. Bozza’s prosecution was severed from that of the defendant, and he testified onbehalf of the State at the defendant’s trial. While the State’s theory was that Mr. Bozza hiredthe defendant to kill the victim, Mr. Bozza said at trial that the defendant had misunderstooda “bad joke” of his that they “crisscross,” the defendant killing Mr. Bozza’s wife, while Mr.Bozza do the same to the mother of the defendant’s son.

During the State’s direct examination of Mr. Bozza, he was asked a series ofquestions regarding his contacts with the defendant shortly before and after the death of thevictim. Following a series of equivocal responses by Mr. Bozza, the State asked if he had“told [the State he] had knowledge prior to the murder that this was going to happen.” Hefirst gave a negative response and, when questions continued regarding the same matter, heresponded, “Well, I mean, we talked about an awful lot of things, sir.” At that point, theState asked to play for the jury a prior recorded statement of Mr. Bozza, which the Staterepresented was inconsistent with his trial testimony. After the court had questioned theState about the specifics of the statement, Mr. Bozza was further questioned as to the datethe statement was recorded and who was present. After the statement was viewed by thecourt, the parties, and the defendant, out of the presence of the jury, the court advisedcounsel that the portion of the statement in which Mr. Bozza had responded to questionsregarding a polygraph could not be played for the jury because it was beyond the scope ofhis direct examination to that point. The court ruled that the remainder was “a prior

inconsistent statement [which could] come in as substantive proof.”

On appeal, the defendant argues that the recorded statement did not qualify foradmission under Tennessee Rule of Evidence 803(26) because it was not inconsistent withhis trial testimony; even if portions of it were inconsistent, the remaining parts of thestatement should not have been admitted; and that the court erred in its instructions to thejury regarding this statement.

We have carefully reviewed the trial transcript regarding this matter. While thedefendant did seek clarification as to the procedure for playing Mr. Bozza’s statement forthe jury, it does not appear that he made the same specific objections to the statement at trialas are made on appeal. Accordingly, we conclude that this issue is waived. See Tenn. R.

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App. P. 36(a). Additionally, in view of the strength of the evidence against the defendant,if the court erred in admitting the statement, the error was harmless.

VI. Evidence of Threats by Defendant

During the trial, Chad Wilson testified that the defendant telephoned him from jail and made threatening statements; and Detective Crumby testified that the defendant madea threatening phone call to him, as well.

At trial, Chad Wilson testified that the defendant telephoned him on August 29, 2010,and asked how to remove a battery from an iPhone. In response, Wilson explained how thiscould be done. After Wilson learned of the victim’s death, he telephoned police and told ofhis call from the defendant. Following the defendant’s arrest, he telephoned Wilson severaltimes, and Wilson explained that he believed the last of the calls to be threatening.

Detective Crumby testified that, after he served a search warrant at the home of thedefendant’s mother, he began receiving anonymous telephone calls:

Q. After you served that search warrant, did you start getting some phonecalls?

A. I did.

Q. And can you just describe to the jury what was said to you basically?

A. It was basically a male’s voice on my cell phone. It was a gravelly voice. He was telling me I messed with the wrong person, he knows where my familylives, you push a man so far. But it was a person trying to . . . hide their voice.

Q. Did you continue to receive these phone calls?

A. I did.

Q. And did you eventually identify who was making them?

A. I did. On one particular I believe it was morning the same call came in. I saw it was a blocked number, and I answered. It was the same gravellyvoice, somebody trying to hide their, you know, voice. And during the phonecall they said you put my mom in the hospital. The person on the other line. And at that minute I said, Corey, we didn’t put your mom in the hospital, I wasreally nice to your mom. We actually got her some water and sat at the table

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with her. Then he started talking normal to me, you know, without trying tohide his voice. And he was talking normal on the phone to me. And he saidthat . . . we put his mom in the hospital, we upset her, and that we were meanto her. He continued to state that he knows where my family lives, he knowswhere my parents live, he knows how old my son is, he knows what we drive. He also said that . . . you can only push a person so far and you’ve messedwith me and you’ve messed with my family and so on.

Q. Were you actually given some police protection after those calls?

A. I was.

Q. Now, . . . where was [the defendant] arrested?

A. Glasgow, Kentucky, I believe, or Barren County, Kentucky. In Kentucky.

Q. Did you transport him back to Tennessee to face these charges?

A. I did.

Q. And when you were in booking, did he make any further statements to youabout you and your family?

A. When we pulled into the back parking lot at the booking station, we gothim out of the car and we were walking up to the door. He stated that, youknow, you and me are a lot alike, I’ve got a son, I also know about your son. . . and I know where he goes to school at Holy Rosary. And he was talkingabout my son.

Q. You perceived that to be threatening?

A. I did.

Addington said she was “terrified” the defendant would find out she was cooperatingwith the police.

The defendant argues that this testimony is irrelevant and that its prejudicial effectoutweighs its probative value.

Relevant evidence is “evidence having any tendency to make the existence of any factthat is of consequence to the determination of the action more probable or less probable than

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it would be without the evidence.” Tenn. R. Evid. 401. All relevant evidence, subject tocertain exceptions, is generally admissible under Rule 402 of the Tennessee Rules ofEvidence. Relevant evidence may be excluded if “its probative value is substantiallyoutweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.

Tennessee Rule of Evidence 404(b) provides as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, oracts is not admissible to prove the character of a person in order to show actionin conformity with the character trait. It may, however, be admissible for otherpurposes. The conditions which must be satisfied before allowing suchevidence are:

(1) The court upon request must hold a hearing outside the jury’spresence;

(2) The court must determine that a material issue exists other thanconduct conforming with a character trait and must upon request state on therecord the material issue, the ruling, and the reasons for admitting theevidence;

(3) The court must find proof of the other crime, wrong, or act to beclear and convincing; and

(4) The court must exclude the evidence if its probative value isoutweighed by the danger of unfair prejudice.

Exceptional cases in which evidence of an accused’s prior bad acts will be admissibleinclude those in which the evidence is introduced to prove identity, intent, motive,opportunity, or rebuttal of mistake or accident. State v. Drinkard, 909 S.W.2d 13, 16 (Tenn.Crim. App. 1995); see also Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[7][a] (5thed. 2011). Where the trial judge has substantially complied with procedural requirements,the standard of review for the admission of bad act evidence is abuse of discretion. State v.DuBose, 953 S.W.2d 649, 652 (Tenn. 1997). Because the trial court in this matter compliedwith the requirements of Rule 404(b), we review its rulings under an abuse of discretionstandard.

As to the telephone call from the defendant to Chad Wilson, the trial court made apretrial finding that the testimony regarding it was admissible to show that the defendant didnot own an iPhone and wanted to know how to unlock one:

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The call begins with a casual conversation where Defendant indicateshe was sending some guys from the Sheriff’s Office to him for work and Mr.Wilson expresses his appreciation. Defendant then advises Mr. Wilson that hehas received the discovery in his case and he noted that it containedinformation that Mr. Wilson called the police to tell them that Defendantdidn’t own an iPhone and that they discussed the pattern to unlock his phone. He follows up indicating that the State’s “whole case consists of [Mr. Wilson]and [inaudible name sounding like John],” which he said didn’t make sense tohim. He concludes the phone calls with Mr. Wilson by stating: “Just know Iknow. Not sure what you thought was doing [sic] but not going to work. Ireally appreciate it (sarcasm) and hope you get what you want.”

The tone of the conversation is consistent throughout and the Courtfinds that Defendant did not make any explicit or implied threats to Mr.Wilson. Thus, the Court cannot find that the recording is admissible on thebasis Defendant threatens the witness. However, the Court does not find thatthere is necessarily a basis to exclude the admission of the call as the contentsof the call may be deemed relevant to show Defendant admitted he did notown an iPhone and corroborate Mr. Wilson’s testimony that Defendant askedhim how to “unlock” an iPhone. The Court makes the preliminary ruling thatthe phone call is admissible; however, after hearing the evidence at trial theparties may request the Court to reassess its admissibility should the evidenceregarding the iPhone be cumulative.

Additionally, the court determined that Detective Crumby’s testimony regardingthreats by the defendant also was admissible:

Detective Crumby served as one of the officers on this case andparticipated in the transport of Defendant when he was extradited toTennessee. Presumably Detective Crumby will be testifying at trial as to theinvestigation of the murder. Detective Crumby testified before the Court asto the generalized threats he received from Defendant on his cell phone as wellas more specific statements Defendant made about knowing the location andschedules of Detective Crumby’s family members when Detective Crumbytransported him. The Court finds Detective Crumby’s testimony to be relevantand will permit him to testify about the threats at trial.

As to Detective Crumby, we conclude that the record supports the trial court’sdetermination that his testimony was relevant regarding what he perceived to be threats tohim by the defendant and, additionally, that its probative value outweighed any prejudice tothe defendant. Further, the record supports the trial court’s determination that Chad

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Wilson’s testimony about removing a battery from an iPhone was relevant to support histestimony that the defendant did not own such a cell phone and as to how one could be“unlocked.” Additionally, on appeal, the State acknowledges the State’s leading questionto Wilson as to whether he perceived the call from the defendant as “threatening.” However,because the defendant did not object to this question, his objection on appeal, also, is waived.

VII. Defendant’s Affidavit of Indigency as Evidence

Following the defendant’s being indicted in this matter, he executed an affidavit ofindigency, and the public defender’s office was appointed to represent him. Subsequently,the State sought a hearing as to whether the defendant qualified for court-appointed counsel. At the hearing, the State presented evidence of his bank accounts and plans to travel toBarbados. The defense responded with evidence contrary to that of the State and showingthat he had minimal assets, much less than the $25,000 to $50,000 which both sides agreeda lawyer in private practice would charge to represent the defendant in the matter. Thedefendant then filed a revised affidavit of indigency, stating that he had no income or moneyavailable and that his ownership of an automobile valued at $16,000 was subject to a lien.

At trial, the State argued that the indigency affidavit was admissible to show that thedefendant had neither income nor assets to travel to Barbados, as he was planning to do. Thedefendant objected to the evidence, asserting that it was prejudicial to the defendant to showhis financial status and other evidence was available to the State for what it was seeking toshow. The trial court directed that the heading “Uniform Affidavit of Indigency” be removedfrom the copy to be admitted into evidence but that, otherwise, the affidavit was admissibleto show “whether or not [the defendant] had a motive to get money.”

Subsequently, at the trial, the State’s lengthy opening statement included the remarksthat the defendant “was in financial trouble [and] had no money . . . . That was the perfectstorm. You had Mr. Bozza upset, you had [the defendant] needing money. They came upwith a plan. That plan was for [the defendant] to kill Veronica Bozza for $10,000.” Duringthe cross-examination of the defendant, he was asked various questions about his distressedfinancial situation, sometimes with references to the affidavit of indigency. During rebuttalargument, the State asserted that the only conclusion was that “Tim Bozza [and thedefendant] planned for their big event, planned to make a lot of money, solve all theirproblems, trip off to Barbados together where they couldn’t be extradited.”

On appeal, the defendant argues that the affidavit was irrelevant and should have beenexcluded pursuant to Tennessee Rules of Evidence 401 and 402. Citing State v. Leach, 148S.W.3d 42, 54 (Tenn. 2004), the State responds that the evidence and related questions wererelevant to show that the defendant “had a financial interest in the victim’s death.” We notethat in State v. Reid, 213 S.W.3d 792, 813-15 (Tenn. 2006), our supreme court explained that

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evidence of a defendant’s financial status was relevant:

In our view, evidence that a defendant is poor, without more, has littleprobative value. As observed by the Ninth Circuit Court of Appeals, “A richman’s greed is as much a motive to steal as a poor man’s poverty. Proof ofeither, without more, is likely to amount to . . . unfair prejudice with littleprobative value.” [United States v.] Mitchell, 172 F.3d [1104,] 1108-09 [(9thCir. 1999)]. The better rule, therefore, is that the State must introduce proofof “something more” than a defendant’s poverty in order to meet the thresholdof relevance necessary for admission.

In this instance, “something more” was proof that despite the loss of hisjob without severance pay, the defendant had made several cash purchasestotaling in excess of $800, had sought to invest $3000, and had over $1000 incoins in his possession at the time of his arrest. That the defendant had nolegitimate source of income following the termination of his employment,coupled with proof of these expenditures shortly after the robbery, wasrelevant, circumstantial evidence of the commission of the crimes. Accordingly, the trial court did not err in admitting testimony about hisfinancial condition at the time of the crimes.

Id. at 814-15.

We conclude that this issue is without merit.

VIII. Jury Instruction as to Parole Eligibility

On appeal, the defendant complains about the response of the trial court to a questionfor the jurors during deliberation. We will examine this issue.

Prior to the trial, the State filed notice that it was seeking a sentence of lifeimprisonment without the possibility of parole. Following the jury’s concluding that thedefendant was guilty of first degree premeditated murder and that the State had proven theexistence of both aggravating circumstances, the trial court instructed the jury, at thesentencing portion of the trial, regarding the effect and meaning of a life sentence:

It is now your duty to determine, within the limits prescribed by law,the penalty which shall be imposed as punishment for this offense. Tennesseelaw provides that a person convicted of murder in the first degree shall bepunished by death, by imprisonment for life without the possibility of parole,or by imprisonment for life.

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The State, however, is not seeking the death penalty. A defendant whoreceives a sentence of imprisonment for life shall not be eligible for paroleconsideration until the defendant has served at least fifty-one (51) full calendaryears of such sentence. A defendant who receives a sentence of imprisonmentfor life without parole shall never be eligible for release on parole.

Additionally, the jury was instructed as to the differing available punishments of lifewithout parole and life with parole:

Therefore, we, the jury, unanimously find that the punishment shall beeither a) we the jury unanimously agree that the defendant shall be sentencedto imprisonment for life without the possibility of parole, or b) we, the jury,unanimously agree that the defendant shall be sentenced to life, toimprisonment for life.

The jury’s written question was as follows:

If they change the definition of life in prison will that reduce his sentence[?] For instance, if the law changed to where someone who was sentenced to lifewas eligible for parole in 25 years, would [the defendant] also be eligible forparole in 25 years[?]

The trial court responded to the jury’s question:

A person is sentenced according to the law in effect at the time of hiscrime. However, the legislature may change the law and the sentence couldbe reviewed.

According to the defendant, “[s]hortly after the trial court provided the jury with thesupplemental instruction, the jury imposed a sentence in count 1 of life imprisonmentwithout the possibility of parole.” The defendant argues that the giving of this instructiondeprived him of his right to due process of law. In response, while agreeing that the betterpractice would have been for the trial court simply to have referred the jury to the originalinstructions rather than provide the supplemental instruction, the State disagrees that itentitles the defendant to a new trial.

As the State points out, the trial court’s instruction was not incorrect. In fact, thelegislature could reduce the parole eligibility for life imprisonment during a term beingserved by the defendant. The court already had instructed the jury as to the difference in lifewith and without parole. Because the trial court’s supplemental instruction did not alter whatthe jury already had been told of the differences in the two sentences, it is not apparent what

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effect, if any, this instruction had on the final verdict. Accordingly, we conclude that thisassignment of error is without merit.

The defendant also argues that the evidence of aggravating circumstances wasinsufficient. Prior to trial, the State filed notice of two aggravating circumstances:

1. The defendant was previously convicted of one (1) or more felonies,other than the present charge, whose statutory elements involve the use ofviolence to the person;

2. The defendant committed the murder for remuneration or thepromise of remuneration or employed another to commit the murder forremuneration or the promise of remuneration[.]

The jury found that both circumstances were proven, and, on appeal, the defendantcontests only the second – that the defendant committed the crime for remuneration orpromise of remuneration. On appeal, the defendant argues that the State failed to prove thiscircumstance.

As for the proof that the murder was for hire, the proof is abundant. Mr. Bozzaacknowledged that a few weeks after the defendant told him that the victim “wouldn’t be aproblem for [Mr. Bozza] anymore,” he came to Mr. Bozza’s house and asked for $35,000.Regarding the death of the victim, Mr. Bozza responded to the State’s questions regardingthe tape-recorded statement given by him regarding his arrangement with the defendant tokill the victim:

Q. And that tape that we just watched, that meeting was called by yourlawyer–

A. Yes, sir.

Q. – and you heard me state – the reason being you were finally going toacknowledge there was a monetary agreement between you and [thedefendant]; is that correct?

A. Well, I wanted to get as much of the truth out as I was remembering at thetime, yes, sir.

Q. And did you not say, I told him I would give him $10,000?

A. Well, the statement was made that – when he offered, I said, that sounds

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like a good plan right there, but I can’t necessarily do that myself.

Q. Yeah, you couldn’t do the killing yourself?

A. No, sir.

Q. But then you said you would give him $10,000. Isn’t that what that said?

A. Well, it could be construed as that, yes, sir.

Q. Was it said, construed? Did you not just say you could give him $10,000? And then you said you didn’t back off?

A. Exactly right. I never backed off of anything, no, sir.

Q. Okay. So that could be construed to have an agreement to pay $10,000?

A. Yes, sir, it could be. Absolutely.

Based upon this evidence, we conclude that a reasonable jury could have determinedthat the killing of the victim was committed for remuneration or the promise ofremuneration.

IX. Errors in Sentencing

The defendant asserts that the trial court erred both in sentencing him to twenty-five years for his especially aggravated robbery conviction and ordering that it be servedconsecutively to his life sentence for first degree premeditated murder. The State respondsthat the record supports the trial court’s sentencing of the defendant.

In State v. Pollard, __ S.W.3d __, 2013 WL 6732667, at *7 (Tenn. 2013), oursupreme court held that “the abuse of discretion standard, accompanied by a presumptionof reasonableness, applies to consecutive sentencing determinations.” In this matter, the trialcourt conducted an extensive sentencing hearing, explaining why the defendant’s sentenceswould be served consecutively:

So, that leads us to the next issue in that whether or not he should getconsecutive or concurrent sentences. Now, I do find that he is an offenderwhose record of criminal activity is extensive and in so doing I can alsoconsider the homicide in that, but he has a long record that goes back for along way and it, and when you look at it it is aggravated assault, aggravatedassault, assault, assaults, assaults, lots of times involving women.

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I think he has a record which is extensive with regard to that and he isa dangerous offender whose behavior indicates little or no regard for humanlife and no hesitation about committing a crime in which the risk to human lifeis high.

Clearly, he is a dangerous offender. He, . . . based on the testimony attrial[,] killed . . . [the victim] with absolutely no, quickly, followed her, did itfor his boss and there was obviously some discussion about the insurancemoney. This is a dangerous offender . . . who stalked someone, went in onthem, killed them and left.

. . . .

. . . Now, Wilkerson factors apply. For factor number 4, and that is inorder to have consecutive sentences it has to be based on the fact that theaggregate term reasonably relates to the severity of the offenses and it isnecessary in order to protect the public from further serious criminal conductby the defendant.

Now, [defense counsel] makes a point that he has already beensentenced to life without the possibility of parole and that therefore it’s notnecessary to protect the public further from serious criminal conduct by thedefendant. However, that in and of itself is not something that I need to lookat. Though, I find in this particular case given the history of [the defendant]throughout the criminal history that is felonies after felonies, probationviolations, probation violations, and then the very serious nature of thisoffense, which I have described and I will rely on the facts in the record aboutthe nature of this offense and just sort of the coldness and the way [the victim]was executed, I find that it is necessary to protect the public from furtherserious criminal conduct by the defendant. So, I am sentencing him to 25years and it will be a consecutive sentence.

Tennessee Code Annotated section 40-35-115(b) provides that it is within the trialcourt’s discretion to impose consecutive sentencing if it finds by a preponderance of theevidence that any one of a number of criteria applies, including that “[t]he defendant is anoffender whose record of criminal activity is extensive,” that “[t]he defendant is a dangerousoffender whose behavior indicates little or no regard for human life and no hesitation aboutcommitting a crime in which the risk to human life is high,” or that “[t]he defendant issentenced for an offense committed while on probation.” Tenn. Code Ann. § 40-35-115(b)(2), (4), (6) (2010). When a trial court bases consecutive sentencing upon itsclassification of the defendant as a dangerous offender, it is required to make further findings

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that the aggregate length of the defendant’s sentence reasonably relates to the severity of hisoffenses and is necessary to protect the public from further criminal conduct of thedefendant. State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson, 905S.W.2d 933, 937-38 (Tenn. 1995). The criteria listed in section 40-35-115(b) are stated inthe alternative; therefore, only one need exist to support the appropriateness of consecutivesentencing.

The record abundantly supports the determination of the trial court that the defendanthas an extensive criminal record and that he is a dangerous offender whose behaviorindicates little or no regard for human life and no hesitation about committing a crime inwhich the risk to human life is high. Further, the trial court concluded that consecutivesentencing was necessary because of the severity of the offenses and the need to protect thepublic, and the record supports this finding as well. This assignment is without merit.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgments of the trial courtare affirmed.

_________________________________ALAN E. GLENN, JUDGE

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